A recent Colorado Court of Appeals decision tossing the conviction of a suspected drug dealer based on continuous video surveillance without a search warrant doesn't impact more general uses of the technology, Mesa County District Attorney Dan Rubinstein says.
On Thursday, a three-judge panel of the court ruled that Colorado Springs police violated a defendant's Fourth Amendment rights against unreasonable searches and seizures when they installed a video camera on a pole outside of a suspect's home without a search warrant and watched him for more than three months.
The court said the use of such technology constituted a warrantless search even though police did not enter the suspect's property, and therefore any evidence gathered through it could not be used in a court of law.
The case is expected to be appealed.
"The issue in this case is whether the continuous, three-month-long use of the pole camera constituted a search under the Fourth Amendment to the United States Constitution. We conclude that it did," Judge Daniel Dailey wrote in the ruling, which was joined by Judges David Richman and Jaclyn Casey Brown.
"It would not be a search for a police officer to climb a utility pole and look over a privacy fence into a homeowner's backyard with equipment similar to the pole camera," Dailey wrote. "But of course, this case did not involve a police officer physically climbing to the top of a utility pole and looking over (a) privacy fence with a standard pair of binoculars or with a telescopic camera."
Essentially, the court ruled that because there is an expectation of privacy, use of a camera, particularly one that can pan and zoom to target a specific person or property for so long a period of time, goes too far.
Still, there is a big difference in pole cameras and using permanent cameras that are aimed at the general public to spot potential crimes, such as local law enforcement's use of license plate readers, Rubinstein said.
That often-used camera technology is prevalent on parts of the Western Slope. Law enforcement use it to spot vehicles that may be involved in transporting drugs, finding stolen vehicles or locating human traffickers. The Grand Junction Police Department, for example, has more than a dozen such cameras around the Grand Valley.
"The main difference is that license plate readers are directed at the general populace," Rubinstein said. "This was three months of continuous surveillance into a fenced backyard of an individual's home. The differences are stark. Citizens routinely drive through scanned toll booths that scan every car, pass officers on roadsides, unmanned speed traps, or subject themselves to random governmental observations that are not directed at a particular citizen."
Rubinstein said the Fourth Amendment does not apply in such general "searches" because there is no expectation of privacy when someone is out in public.
"Invasion of privacy of the citizen's home is the chief evil against where the wording of the Fourth Amendment is directed," he said. "The courts treat public travel on roads differently. They also treat differently police monitoring that is not directed at an individual, but rather all citizens."